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REPRESENTATION A. A. ARAOYE for the claimants. P. A. OMOLUABI for the defendant. R U L I N G The claimant, by a General Form of Complaint filed on 13th February, 2015, with the accompanying frontloaded documents, approached the Court for the following reliefs: a. AN ORDER of the Court directing the Defendants to define the status and or the relationship of the Claimants with the 1st Defendant. b. AN ORDER of perpetual injunction restraining the Defendants by themselves, agents, privies or any other person and or organization/institution from stopping the payment of the Claimant’s pension. c. The sum of N10,000,000.00 (Ten Million Naira) only being general damages for the hardship, severe mental anguish and embarrassment occasioned the Claimants and their families as a result of the Defendants failure and or refusal to pay their pension as and when due. d. Cost of instituting and prosecuting this Suit. Claimant’s Case The cause of action is for definition of status of employment. The claimants are former staff of the defendant, who had been paying them their pension regularly until late 2014. The Defendants brought a NOTICE OF PRELIMINARY OBJECTION filed on 13th April, 2015 and dated same day, deposed to by Paul Omoluabi, seeking for AN ORDER dismissing the Plaintiffs’ Suit in its entirety. GROUNDS FOR THE APPLICATION 1. The subject matter of this suit with same parties was adjudicated upon by court of competent jurisdiction. 2. The cause of action of this suit arose in 2008, about 6 years ago as indicated in the originating process of the Plaintiffs. 3. The Defendants (particularly 2nd Defendant) herein are Public Officers employed by Section 10 National Insurance Commission Act, 1997; Cap N53 LEN, 2004, 4 That Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LEN, 2004, provides that this action be commenced within 3 months, 5. The Suit is frivolous, vexatious, speculative, hypothetical, academic and an abuse of Court process. 6. This Honourable Court lacks the requisite jurisdiction and competence to entertain and/or determine this Suit. 7. It is in the interest of justice to dismiss the Suit. WRITTEN ADDRESS IN SUPPORT OF THE PRELIMINARY OBJECTION ISSUE Whether this Honourable court has the requisite jurisdiction to entertain and determine this suit considering the grounds upon which this application is brought. ON THE PRINICPLES OF RES JUDICATA Learned Counsel P. O. Omoluome Esq. submitted that this suit is incompetent on the ground that it has breached the principle of estoppel per rem judicatam, in that, this suit has been adjudicated upon before by same parties, privies and on same subject matter by a court of competent jurisdiction and a verdict was validly delivered. Omiyale v. Macaulay (2009) 7 NWLR (Part 4111) 597, 613D, per Oguntade, JSC. He submitted that there must be an end to litigation and litigants are expected to refrain from filing frivolous and vexatious suit which may amount to an abuse of court process. Simoh v Akande (2009) 5 NWLR (Part 1135) 549, 577 C-F. Per Chukwuma-Eneh, JSC. ON THE STATUTE OF LIMITATION It is defence counsel’s submission that the Defendants are “persons†covered by the Section 10 of the National Insurance Commission Act, LFN 2004 and that any action challenging the disengagement of any employee by the Defendants must comply by Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LFN, 2004. Furthermore, that this present suit is no longer maintainable considering the interpretation of Section 2(a) of the Public Officers Protection Act, Cap. P. 44. LFN, 2004. Sanni v. Okene L.G (2005)14 NWLR (944) 60, 75-7611-C, per Rhodes-Vivour, JCA. Counsel submitted that once a court has come to a decision that an action filed before it is statute barred, the order which the court is entitled to make, applying the decision of the supreme court per lguh, JSC IN IBRAHIM V JSC, KADUNA STATE & ANOR (1998)14 NWLR (PART 584)1 is one of dismissal. ON ABUSE OF PROCESS Learned Counsel for the defendants further argued that Court Processes are expected to be used bona fide, but that where a process is found to be an abuse of court process, it will be dismissed by the Court. Arubo & Ors v. Aiyeleru & Ors (1993) 3 NWLR (Part 280) 126, 1 42A-B, per Nnemeka — Agu, JSC; Onyeabuchi v. Independent National Electoral Commission & Ors (2002) NWLR (Part 769) 417, 441-442 G-A. ON THE JURISDICTION OF THE COURT Standing on the authority of Madukolu v Nkemdilim (1962) 1 ALL NLR 587, 594, Learned Defence Counsel submitted that this Honourable Court is deprived of jurisdiction to entertain this suit. The Claimant’s filed a 10 paragraph COUNTER AFFIDAVIT on 4th May, 2015 and dated same day deposed to by Akawo Gwamna. WRITTEN ADDRESS IN OPPOSITION TO THE DEFENDANTS/APPLICANTS NOTICE OF PRELIMINARY OBJECTION. ISSUES 1. Whether this suit as presently constituted is competent or properly constituted to warrant the court assuming jurisdiction to hear and determine same on the merits thereof? 2. Whether this Suit as presently constituted is not frivolous, scandalous, vexatious and or otherwise an abuse of the process of the Court? ON ISSUE 1 Whether this suit as presently constituted is competent or properly constituted to warrant the court assuming jurisdiction to hear and determine same on the merits thereof? Answering in the affirmative, Learned Counsel to the Claimant A. A. Araoye Esq. contended that this line of argument is not only baseless but also misconceived. And that the doctrine of res judicata has no place in this case because for the doctrine to apply, parties must be the same, the subject matter must be the same as well, the cause of action in the earlier decided case must have arisen again in the later proceeding and finally that the judgment must be valid and subsisting. OLOYE VS. OLAYEMI (2013) 9 WRN RATIO 3 (pg.119) Lines 20-25. He argued further that once one of the ingredients of the doctrine is lacking in the proceedings, the doctrine of Res Judicata will not apply. MUTAIRU VS. ATOKE (2011) 43 WRN RATIO 4 (pg.117) Lines 10-30. ON ISSUE 2 Whether this Suit as presently constituted is not frivolous, scandalous, vexatious and or otherwise an abuse of the process of the Court? Learned Claimant Counsel submitted that in order to determine this issue properly, there should be the need to ascertain what the abuse of court processes connotes. SARAKI VS KOTOYE (1992) 3 NSCC @331; NTUKS VS. NPA (2007) 13 NWLR (Pt. 1051) 392 @419 — 420, per Niki Tobi JSC; TAIWO VS AKINBOLAJI (2011) 9 WRN RATIO 3 particularly @ (pg. 172) lines 15 – 25. The defendants in reaction filed their REPLY ON POINTS OF LAW on 19th May, 2015. ON WHO ARE THE PARTIES TO THIS SUIT Learned Counsel relying on the Black Law Dictionary, 6th Edition, at page 1200, for the definition of “Privyâ€, submitted that the claimants in this suit were privies to the previous suit adjudicated upon by a court of competent jurisdiction. ON TREATMENT OF FACTS PLEADED OR DEPOSED ON WHICH NO EVIDENCE IS LED Defendant’s Counsel contended that the claimants’ depositions in their Counter Affidavit are false and lacks evidence to substantiate the facts deposed therein. The law is trite, that such facts deposed, are deemed abandoned. N.A.S. Ltd v. UBA Plc. (2005) 14 NWLRT (part 945), 436 C, per Akintan JSC. ON PRESUMPTION OF WITHHOLDING EVIDENCE That all of these evidences were withheld by the claimants. N.A.S. Ltd v. UBA Plc. (supra) 437 D-F, per Akintan JSC. On the 9th February 2017 parties adopted their written address and adumbrated their respective positions. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this application and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants application. Before I delve into the merit of this application it is necessary to restate the import of a Reply on point of Law at this stage. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to re-argue or re beautify already stated submissions. Having stated this now to the merits of the defendants objection; The defendants objection is basically on two main planks Res Judicata and Statute barred; Public Officer’s Protection Act. With regard to res judicata the defendant have argued that this suit is incompetent on the ground that it has breached the principle of estoppel per rem judicatam, having been adjudicated upon before by same parties, privies and on same subject matter by a court of competent jurisdiction and a verdict was validly delivered; FHC/ABJ/CS/2009. Arguing that where a process is found to be an abuse of court process, it will be dismissed by the Court. To the defendants the claimants in this suit were privies to the previous suit, as the names of the claimants were listed in the pre action notice of the former suit already adjudicated upon by a court of competent jurisdiction. The claimants however maintain that the doctrine of res judicata has no place in this case because for the doctrine to apply, parties must be the same, the subject matter must be the same as well, the cause of action in the earlier decided case must have arisen again in the later proceeding and finally that the judgment must be valid and subsisting. To the claimant once one of the ingredients of the doctrine is lacking in the proceedings, the doctrine of Res Judicata will not apply. Arguing that a pre action notice cannot not be elevated to the status of a substantive suit and that the causes of action in both cases are not the same. The position of the law in respect to a plea of Res Judicata has been well stated in the case of OLOTU v. POWER HOLDING COMPANY OF NIGERIA (2014) 42 NLLR (PT. 132) 529 @ 534. Where this court held that “For a plea of estoppel to succeed, the following must be present, that is: The parties or their privies must be the same in both the previous and present proceedings; The res of the subject matter of the litigation in the two cases must be the same; The decision relied upon to support the plea of estoppel must be valid, subsisting and final; and The court that gave the previous decision relied upon to sustain the plea must be a court of competent jurisdiction. All the above must be fully established before the plea can be sustainedâ€. Also in DAUDA V. A.G. LAGOS 46 NSCQR 1. The Supreme Court held that “Where a judgment, i.e. a final judicial decision has been pronounced on the merit by a court with the requisite jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits. Once it is a final decision on the same question and between the same parties, it is binding until upset on appeal. Res judicata gives effect to the policy of the law that parties to a judicial decision should not afterwards be allowed to re-litigate the same question even if the decision is wrong. This is premised on the fact that a court has jurisdiction to decide wrongly as well as correctly, and if it makes any mistake, its decision is binding unless corrected on appeal.†Per Bode-Rhodes-Vivour, JSC at P. 180. The Court went on to hold that “Where a party sets up res judicata by way of estoppel as a bar to the other party’s claim, the following must be established: There must be a judicial decision; The court that rendered the decision must have had jurisdiction over the parties and the subject matter; The decision must be final and on the merits; The decision must determine the same question as that raised in the later litigation; and The parties to that later litigation were either parties to the earlier litigation or their privies, or the earlier litigation was in rem.†Per Bode-Rhodes-Vivour, JSC at P. 180. See also the case of A.G. NASARAWA V. A.G. PLATEAU 50 NSCQR 1 Where the Apex Court defined the meaning of Estoppel per rem judicata thus; “Otherwise known as estoppel by record arises when an issue of fact has been judicially determined in a final matter between the parties by court or a tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are estopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action.†Per O.O. Adekeye JSC at P. 375. The court also continued On what a party pleading Estoppel per rem judicatem must prove to succeed: That the parties or their privies involved in both the previous and the current proceedings in which the plea is raised are the same; That the claim or issue in dispute in both proceedings are the same; That the res or the subject matter of the litigation in the two cases is the same; That the decision relied upon to support the plea is valid, subsisting and final; That the court that gave the previous decision relied upon to sustain the plea was a court of competent jurisdiction. The burden is on the party who sets up the force of estoppel per rem judicatem to establish the above pre-conditions conclusively.†Per O.O. Adekeye JSC at P. 375. And the court went on to hold that “The plea of Res Judicata is used as a shield and not as a sword. As a successful plea constitutes a bar to any fresh action as between the parties or their privies. It is as a plea, a bar and as evidence, it is conclusive. Once a plea of Res Judicata has been established, the jurisdiction of the court would be ousted.†O.O. Adekeye JSC at P. 376. Integral in the defendants objection based on Res judicata is a plea that the claimants case is an abuse of process, this court defined what amounts to abuse of court process in the case of FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 As “Where a party improperly uses the judicial process, intentionally in order to irritate and annoy his opponent, it can be said that such amounts to an abuse of the process of the Courtâ€. AFRICAN REINSURANCE CORP. v. JDP CONSTRUCTION NIG. LTD. (2003) 2-3 S.C. 47; (2003) 13 NWLR (PT. 838) 609 @ 635 In the case of IKEME v. VC, UNIVERSITY OF NIG. & ORS. (2014) 40 NLLR (PT. 123) 466 NIC @ 470.this court held that “The fundamental criteria for determining that a case is an abuse of process is that there must exist a multiplicity of suits and such multiplicity of suits is intended to annoy or harass the opponent by so doing or temper with the judicial processâ€. OGOJEOFOR V. OGOJEOFOR (2006) 3 NWLR (PT. 966) 205 @ 220; KOTOYE v. SARAKI (1992) 9 NWLR (PT. 264) 156 @ 188-189 The case went on that “the defendants or any party alleging an abuse of court process must place before the court concrete evidence such as the processes of the other pending case or any such material particulars to enable the court make a finding that would enable it reach a decision on whether or not the facts and circumstances of the case indeed amount to an abuse of court processâ€. In the instant case the defendants in raising the plea of res judicata maintain that the herein listed claimants were part of the claimant’s listed in the pre action served on their earlier counsel for the case of FHC/CS/561/2009 and that they are in fact privies to the earlier suit. Now bearing in mind that a pre action notice was described in the case of AZUBUIKE v. GOVT., ENUGU STATE (2014) 5 NWLR (PT. 1400) 364 @ 376-377 C.A., per Abdul-Kadir, JCA @ 405 thus; “Pre-action notice is a special kind of procedural requirement, different from that for hearing of a pending suit. Therefore, it should not be treated like procedure in pending proceedings. A pre-action notice is not to be equated with processes that are an integral part of the pending proceedings. A pre-action notice cannot be viewed merely or simply as a procedural requirement, because it creates a mandatory statutory duty of an intending claimant and statutory right of the public body or official to be sued, to such notice. ETI OSA LOCAL GOVT. v. JEGEDE (2007) 10 NWLR (PT. 1043) 537. And that “Service of pre action notice on the party intended to be sued pursuant to a statute is, at best a procedural requirement and not an issue of substantive law on which rights of the plaintiff depend. MOBIL PRODUCING NIG. LTD Vs. LSEPA [2002] 14 SCM 167. “The giving of a pre action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow. CHIEF JOHN EZE Vs. COSMAS IKECHUKWU OKECHUKWU [2002] 14 SCM 105 “The requirement of a pre action notice where it is prescribed is known to have one rationale. It is to appraise the defendant before hand of the nature of the action contemplated and give him enough time to consider or re consider his position in the matter as to whether to compromise or contest. CHIEF JOHN EZE Vs. COSMAS IKECHUKWU OKECHUKWU supra And considering that there is not compulsion on a party who gave a pre action notice to follow through by commencing an action, together with the above authorities that describes a preaction notice as not being a substantive issue or part of the cause of action I find that the fact that the claimants were listed in the pre action notice without more is insufficient to make them parties to the previous suit. And considering the position of the law as regard privies. I am aware of the pronouncement of the Court of Appeal in the case of NDIC v. UBN PLC. & ANOR (2015) LPELR-24316(CA) that “It is trite that a person and all his privies are bound by the judgment given in previous proceedings in which he was a party. In the same vein, an estoppel cannot bind persons who were not parties or privies of those parties. Where an issue has been canvassed and adjudicated upon by a court of competent jurisdiction between the parties, it is binding on them in a subsequent suitâ€. See FADIORA & ANOR v. FESTUS GBADEBO & ANOR (1978) 3 SC 219; EZEWANI V. ONWORDI (1986) 4 NWLR (PT. 33) 27; INTERCONTINENTAL BANK PLC V FASICAL TRAVEL AGENCY LTD (2005) LPELR 7510 (CA)." Per Obaseki-Adejumo, J.C.A. (P. 82, paras. C-F). The court of Appeal in the case of ASHOROBINIJA & ANOR v. LABINJO & ORS (2012) LPELR-8009(CA) restated the pronouncement of the Supreme Court in the time honoured case of COKER V. SANYAOLU (1976) 9 -10 SC 203 at 223;that “with particular regard to the doctrine of res judicata, that privies are classified into three – privies in blood (as ancestor and heir); privies in law (as testator and executor; intestate and administrator); and privies in Estate (as vendor and purchaser; lessor and lessee). See OYEROGBA V. OLAOPA (1998) 13 NWLR (PT.583) 509; (1998) 12 SCNJ 115; TSOKWA OIL & MARKETING COY V. UTC (NIG) PLC (SUPRA) at 467 E-H; 468 A." Per Saulawa, J.C.A. (P. 22, paras. C-E) Also; The Osborn’s Concise Law Dictionary Eight Edition ©Sweet and Maxwell defined a ‘privy’ as “one who is a party to, or has a share or interest in something.†So the 19 listed claimants in this suit have any interest of share in the earlier suit in the Federal High Court. The defendants have not shown this court how the 19 claimant in this instant can be considered privies to the earlier suit. The claimants have argued that the subject matters of the two suits are not the same, the present suit has the following four reliefs; a. AN ORDER of the Court directing the Defendants to define the status and or the relationship of the Claimants with the 1st Defendant. b. AN ORDER of perpetual injunction restraining the Defendants by themselves, agents, privies or any other person and or organization/institution from stopping the payment of the Claimant’s pension. c. The sum of N10,000,000.00 (Ten Million Naira) only being general damages for the hardship, severe mental anguish and embarrassment occasioned the Claimants and their families as a result of the Defendants failure and or refusal to pay their pension as and when due. d. Cost of instituting and prosecuting this Suit. These reliefs relate and are centered on the non-payment of the claimants pension while in the earlier suit the only relief relating to pension was relief (f) which was for “an Order compelling the defendants to release forthwith its (sic) statutory deductions to the plaintiffs Pension Funds all deductions made from the plaintiffs various monthly salaries for the purposes of Pension Fund which were never remitted to their various Pension Fund Administrators and their contributions to the National Housing Fund which were debited monthly from their salaries†I find I am unable to situate the claimants relief in the this suit within relief (f) of the federal High Court case neither is there any relief in any way similar with the claimants relief (a) in the earlier suit either. All in all I find that the defendant have not supplied this court with the necessary ingredients / details to found a plea of res judicata or abuse of court process. Those aspects of their Preliminary objection; Grounds 1, and 5 therefore fail and are hereby dismissed without prejudice. The defendants also raised the statutory defence of Public Officers Protection Act. The statute in question is section 2(a) of the Public Officers Protection Act 2004, which provides as follows – Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect. (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit. The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in (b) the public service of a state or federal government… (c) the service of a body whether corporate or unincorporated established under a Federal or State Law. Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.†In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of ALHAJI ALIYU IBRAHIM Vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC.&19 ORS Vs. FGN & 3ORS[2012]17 NWLR (Pt.1329) p.309 at 338. From the foregoing therefore, I find that the defendant is entitled to raise the statutory defence of 2(a) of the Public Officers Protection Act 2004, the next question to be determined is whether the circumstance before the court are such in which this law would have any bearing. The issue for determination before the Court is whether the instant case is statute-barred and this Court in the unreported case SUIT NO. NICN/AB/04/2013 DR ADEGOKE E. ADEGBITE VS. FEDERAL UNIVERSITY OF AGRICULTURE ABEOKUTA & 3 ORS. DATE: November 18, 2014 Held that “in making this determination, it is necessary to also determine in the process when the cause of action in the case arose. By OKENWA V. MILITARY GOVERNOR OF IMO STATE [1997] 6 NWLR (PT. 507) 154 AT 167, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose. Thus, for the purpose of instituting an action in Court, time begins to run from the date the cause of action accrues. The case of MRS. O. ADEKOYA V. FEDERAL HOUSING AUTHORITY [2008] 4 SC 167 went on to state that a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. The effect of the limitation law, and Public Officer’s Protection Act, is a limitation law, by YARE V. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (NSWIC) [2013] 5 – 7 MJSC (PT. I) 1, is that any action that is statute-barred removes the right of action, the right of enforcement and the right to judicial relief. All of this has been recognized and applied by this Court in (amongst others) JOSHUA MNENGE V. NIGERIAN ARMY UNREPORTED SUIT NO. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, MR. FRIDAY IDUGIE V. AUCHI POLYTECHNIC, AUCHI & ORS [2013] 31 NLLR (PT. 89) 242 NIC, HON. RUNYI KANU (JP) & ORS V. THE ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE CROSS RIVER STATE & ORS [2013] 32 NLLR (PT. 91) 63 NIC and MR. IYEDE ONOME FESTUS & ANOR V. MANAGEMENT BOARD OF DELTA STATE UNIVERSITY TEACHING HOSPITAL & ANOR unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014. Now in the instant case, from the reliefs claimed and paragraphs 9 and 10 of the Joint statement of fact of the claimants, what gave rise to the claimant’s claim that their pension payments have been stopped since November 2014. The cause of action find is the non-payment of the claimant November 2014 pension and subsequent monthly pensions. By LUTH & MB V. ADEWOLE [1998] 5 NWLR (PT. 550) 406 it was held that where the claim is that payment of (a periodic payment such as) salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment; hence the cause of action I find arose when the claimants Pensions payment for November 2014 became due (that is end of November 2014) and was not paid. The claimant filed this action in this Court on 13th February 2015. What this consequently means is that the claimant filed this action 13th February 2015 - 30th November 2014 = 2 month and 13 days after the cause of action arose, the Pubic Officers Protection Act, allows a moratorium of the three months. I find the claimant came to court within the three month window. On this score, the instant case is not caught up by section 2(a) of the Public Officers Protection Act. The defendants preliminary objection fails on grounds; 2, 3, 4, 6 and 7. The court find there are no merits to these grounds, the defendants NPO fails and with the exception to grounds 1 and 5 dismissed without prejudice, all other grounds of the preliminary objection are hereby dismissed. I make no order as to costs. This matter shall proceed to trial accordingly This is the court’s ruling and it is hereby entered. ................................................. Hon. Justice E. N. Agbakoba Judge